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What is Left in the “Too Hard Basket”?
Developments and Challenges for the Rights of
Children in Conflict with the Law
Nessa Lynch
Associate Professor, Faculty of Law, Te Herenga Waka – Victoria University of Wellington, Wellington, New Zealand
nessa.lynch@vuw.ac.nz Ton Liefaard
Vice-Dean and UNICEF Chair in Children’s Rights at Leiden Law School, Leiden University, Leiden, the Netherlands
t.liefaard@law.leidenuniv.nl
Abstract
The 30 years since the enactment of the United Nations Convention on the Rights of the Child has seen extensive developments in the theory and practice of children’s rights. Children’s rights are now an established academic discipline with the study of children in conflict with the law being a fundamental area of analysis. This paper takes the approach of highlighting three areas of development of children’s rights scholar-ship in relation to the criminal justice system: children’s rights, developmental science and notable themes emerging from cross-national scholarship, including age limits, diversion, effective participation and deprivation of liberty. In addition, it analyses three gaps or challenges which are “left in the too-hard basket” for the coming decades.
Keywords
1 Introduction
The 30 years since the enactment of the United Nations Convention on the Rights of the Child (“the Convention” or “crc”) has seen extensive develop-ments in the theory and practice of children’s rights. Children’s rights are now an established academic discipline, albeit ‘complex, dynamic, and relatively young’ (Kilkelly and Liefaard, 2019a) with the study of children in conflict with the law being a fundamental area of analysis. For example, a survey of articles published since the inception of this journal yields a wide variety of criminal justice-related topics, ranging from participation of children in court proceed-ings (Rap, 2016) to capital punishment (Linde, 2011; James and Cecil, 2003– 2004; James, 2001). Jurisdiction-specific analyses are prevalent, with Canada (e.g. Trepanier and Tulkens, 1993; Pinero, 2009; Bendo and Mitchell, 2017), and Australia (e.g. O’Brien and Fitzgibbon, 2018; Nunez and Copeland, 2017; De Jonge, 1995) being the most prevalent.
It would be impossible within the parameters of this paper completely to cover the extensive developments in scholarship, or indeed the case-law and human rights jurisprudence across these three decades. This paper takes the approach of highlighting three areas of development of children’s rights schol-arship in relation to the criminal justice system, and three gaps or challenges which are “left in the too-hard basket” for the coming decades. These are not exhaustive and undoubtedly reflect our personal areas of scholarship and geo-graphical locations. We also recognise the dearth of global coverage in the scholarly literature (though note Banks, 2007; 2011; Ame, 2011 in this journal). and the primacy of the English language medium.
Finally, a note on terminology – we use the term children here in its Conven-tion sense, referring to those aged less than 18, while noting that many jurisdic-tions have lower ages of penal majority. We also note that one of the issues that we have identified is that some children accused of serious crimes are exclud-ed from the youth justice system. Therefore, we have chosen to use the term “criminal justice system”, to recognise that not all children in conflict with the law benefit from a specialised youth justice system. We note also that the Com-mittee on the Rights of the Child has decided to advocate for the use of the term “child justice” – instead of “juvenile justice” or “youth justice” (GC No. 24., 2019).
2 Key Developments for Children in Conflict with the Law
human rights framework for such children across three decades, the increasing emphasis on applying scientific understanding to law, practice and policy; and some notable themes of aspects of youth justice systems which emerge from cross-national scholarship.
2.1 Children’s Rights for Children in Conflict with the Law
The rights of children in conflict with the law are firmly embedded in interna-tional human and children’s rights. Children’s rights form part of internation-al and regional human rights law and reflect fundamental human rights no-tions, such as the right to a fair trial, while adding child-specific components (Hollingsworth, 2013). Core children’s rights provisions, in particular articles 40 and 37 of the Convention, revolve around the right of ‘every child alleged as, accused of, or recognized as having infringed the penal law’ (art. 40 (1), crc) to be treated fairly, with respect for fair trial rights including the presumption of innocence, the right to legal or other appropriate assistance and the right to a trial without delay (see art. 40 (2), crc), and in a manner that takes into ac-count the child’s age and her or his best interests (Liefaard, 2015). Children’s rights for children in conflict with the law places states under the obligation to promote the child’s well-being, development and social reintegration, while reinforcing her or his respect for human rights and fundamental freedoms of others (see also art. 29 (1), crc). To this end, states are required and have been stimulated to develop specific laws and policies for children in conflict with the law and invest in the specialisation of professionals (General Comment No. 10, para. 90ff.; see also the new General Comment No. 24, para. 105ff.), pro-vide for measures without resorting to judicial proceedings – i.e. diversion – and set an age below which children cannot be held criminally responsible (i.e. the minimum age of criminal responsibility, macr) (art. 40 (3), crc). Although, the Convention itself does not provide for an age and the 1985 UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) merely provide that the age ‘shall not be fixed at a too low an age level’ (rule 4.1), the UN Committee of the Rights of Child, for a long time, has advocated for a macr of 12 years of age, as the ‘international acceptable minimum’ (General Comment No. 10, para. 32). In its recent 24th General Comment on children’s rights in the child justice system, which replaces General Comment No. 10, the Committee calls for a macr of at least 14 years of age (para. 22). The Commit-tee also ‘commends States parties that have a higher minimum age, for instance of 15 or 16 years of age, and urges States parties not to reduce the minimum age of criminal responsibility under any circumstances’ (para. 22).
the practice of transferring or waiver children to the adult court or to the adult penal system (General Comment No. 24, para. 30). It does so on the basis of the principle of non-discrimination, which has broader implications for the crimi-nal justice system and relates to issues such as discrimination and disparities, status offences and stigmatisation (General Comment No. 24, para. 112; see also General Comment No. 10, para. 6–9). As far as sentencing and the use of depri-vation of liberty is concerned, children’s rights standards advocate for lower sentences and, more importantly, child-sensitive dispositions (see General Comment No. 24 and art. 37 (a) and (c) and article 40 (4), crc) and call for the use of arrest, detention and imprisonment as a measure of last resort and for the shortest appropriate period of time (art. 37 (b), crc).
Scholarship has identified that human and children’s rights have stimulated law reform (see e.g. Zimring, Langer and Tanenhaus, 2015; see also Sloth-Nielsen, 2001) and jurisprudence to secure treatment of children in conflict with the law in conformity with human rights (Skelton, 2018). In addition, it has been identified that the framework has generated further standard-setting in specific areas of criminal justice. The Inter-American Court of Human Rights, for example, has delivered ground-breaking jurisprudence in relation to street children and police violence, and the protection of children under arrest and in detention (Feria Tinta, 2015 with reference to the Villangrán
Mo-rales v. Guatemala case, among others). The Council of Europe, particularly
through its European Court of Human Rights and its case law on children’s right to effective participation (Kilkelly, 2001; Rap, 2013; T & V v.UK cases), the right to legal assistance (Liefaard and Van den Brink, 2014; Salduz case and
Panovits case) and the use of detention as a last resort and for the shortest
pe-riod of time (Van den Brink, 2018), and the Committee of Ministers, have devel-oped specific instruments around child-friendly justice (Liefaard and Kilkelly, 2018; cf. Sloth-Nielsen, 2015), the rights of children subjected to detention and community sentences and ‘new ways of dealing with juvenile delinquency’; the latter reflecting scientific insights regarding development of adolescents, including brain development (see below). In 2016, the European Union adopt-ed a special directive on procadopt-edural safeguards for children who are suspects or accused persons in criminal proceedings, which is grounded in children’s rights and European human rights and is legally binding for EU member states (see Rap and Zlotnik, 2018).
organisations as well as UN special mandate holders, in particular the UN Spe-cial Representative on Violence Against Children, around awareness raising and training of law makers, judges, prosecutors, law enforcement, social work-ers and other professionals, have certainly contributed to this achievement. Unfortunately, this cannot be said for all parts of the world, primarily because of the absence of a regional human rights infrastructure. In addition, it should be noted that regressive trends towards juvenile delinquency, and crime more generally, in some countries show that the principles and rights laid down in the human rights framework are not without controversy (O’Brien and Fitzgib-bon, 2018; Liefaard, forthcoming; Hollingsworth, 2016).
2.2 Developmental Science, Children and Criminal Justice
A different, though related, lens of scholarship is that of developmental psy-chology (the terms “brain science” and “neuroscience” are also used). The ex-tensive literature has been used successfully in advocacy and strategic litiga-tion to temper the effect of punitive laws and policies, particularly in the United States (Steinberg and Scott, 2003). While the human rights lens and the scientific lens are different conceptions of children’s rights and interests, they arguably lead to a similar result – a recognition that it is right and justified to treat children in an age appropriate manner and to emphasise outcomes which recognise children’s lesser capacities for self-control and regulation, but their
greater capacity for change and re-integration.
young adults, and the retention of the presumption of doli incapax (Steinberg, 2009).
In the second context (which draws together the scientific and human rights lenses), there is increasing knowledge of the prevalence of cognitive difficul-ties amongst the population of children in conflict with the law, particularly those children who commit serious offences. Cognitive difficulties may arise from traumatic brain injury, abuse and neglect, neuro-disabilities such as au-tism, adhd, foetal alcohol spectrum disorders, intellectual disability and men-tal illness. Children with these difficulties are highly over-represented in the criminal justice system, particularly in the custodial population (Hughes, 2012; Lynch, 2016). While all children may struggle with comprehension of complex legal processes simply as a result of their stage of development, children with cognitive difficulties face further barriers in the vindication of their rights to effective and meaningful participation in particular, and also recognition of their conditions as a mitigating factor in sentencing. Diagnosis is a key issue, particularly as some of these conditions can manifest first as defiance or a child being non-compliant with requirements such as curfew or bail conditions (Hand et al., 2016). Court processes can be improved through the use of communication assistance/intermediaries who use their expertise in speech and language to explain and interpret proceedings to children (Hoya-no, 2015).
Though separate lenses, scientific findings are increasingly used in human rights analysis to justify protective measures for children. For instance, the re-cent updated General Comment uses brain development evidence to justify the recommendation of a higher minimum age of criminal responsibility:
documented evidence in the fields of child development and neurosci-ence indicates that maturity and the capacity for abstract reasoning is still evolving in children aged 12 to 13 years due to the fact that their fron-tal cortex is still developing… States parties are encouraged to take note of recent scientific findings, and to increase their minimum age accord-ingly, to at least 14 years of age (UN Committee on the Rights of the Child, 2019, para. 22).
2.3 Children’s Rights in Youth Justice Systems – Cross-National Trends in Theory and Practice
2.3.1 Criminal Responsibility and Age Parameters
The minimum age of criminal responsibility, the age of penal majority and various age parameters are the subject of much scholarship. As discussed above, both the human rights lens and the scientific lens have been used to critique minimum ages of criminal responsibility (Morgan and Farmer, 2011; McDiarmid, 2013). Comparative analyses (e.g. Cipriani, 2016) are prevalent in the literature, though may fail to capture the particularities of individual sys-tems. As discussed above, recently the Committee on the Rights of the Child has reached a firm consensus in relation to the age of 14 years (General Com-ment, 2019, para. 22), regarding scientific findings as weighty:
States parties are encouraged to take note of recent scientific findings, and to increase their minimum age accordingly, to at least 14 years of age. Moreover, the developmental and neuroscience evidence indicates that adolescent brains continue to mature even beyond the teenage years, af-fecting certain kinds of decision-making. Therefore, the Committee com-mends States parties that have a higher minimum age, for instance 15 or 16 years of age, and urges States parties not to reduce the minimum age of criminal responsibility under any circumstances.
2.3.2 Diversion, Alternatives and Restorative Justice
Diversion from prosecution is longstanding in national systems for children in conflict with the law. Diversion may mean simply that nothing further hap-pens, or that a child is referred by the police or enforcement officer towards a programme – such as a referral to social services, educational or drug and alco-hol services. Children may be required to make amends for the harm, such as paying small amounts of compensation or reparation, or doing community work.
A principled, consensual and well-delivered diversion process can have con-siderable advantages for children’s rights and interests, delivering a resolution in line with a child’s sense of time, and providing a re-integrative outcome that addresses the child’s needs. The prevalent use of diversion may act to miti-gate somewhat the continued low minimum ages of criminal responsibility in many jurisdictions, by resolving the matter at the lowest level possible. Im-portantly, diversion should ensure that a child does not have a criminal re-cord which causes stigma and hinders future opportunities such as work and travel. There is rightly caution that children’s due process rights are protect-ed, that such processes do not leave the child with a permanent record, and that children participate fully in the agreement to enter the process (Sands, 2016).
Concurrent with the drafting and signing of the Convention in the late 1980s, was the increasing popularity of restorative justice (RJ) processes. Re-storative justice is broadly defined as a communitarian and participatory form of justice, which seeks to return control of a crime and its aftermath to the people involved, namely the alleged offender and the victim of the offence (Crawford and Newburn, 2013). Restoration and reconciliation are goals rather than retribution and deterrence, and decisions may be binding on participants or recommendatory to judicial officers (Morris and Maxwell, 2001). Models of restorative practice are widely used for children in conflict with the law. Preva-lent especially is the family group conferencing model, which was pioneered in New Zealand (Maxwell and Morris, 2006). Scholarship has examined how RJ interacts with children’s rights. It can promote children’s rights (Moore and Mitchell, 2011). Moore (2008: 9) argues that –
However, it is difficult to reconcile the best interests of the child standard with the victim-focused approach of restorative justice, and there are doubts as to whether some children have sufficient maturity for expressions of re-morse (Lynch, 2010).
In a response to indigenous peoples’ desire for self-determination and at-tempts to address the stark over-representation of indigenous children in the justice system, some jurisdictions have seen the establishment of specific courts for indigenous children and their families (Borowski, 2011). Austra-lian jurisdictions’ courts are statutorily based, while the New Zealand model is grassroots (or ‘flaxroots’), with local Maori communities partnering with judges to provide a culturally appropriate venue, process and outcome (Tau-maunu, 2014). Such initiatives give effect to indigenous peoples’ rights to self- determination and practice of culture and have been endorsed by the recent updated General Comment.
2.3.3 Children’s Rights in Court Proceedings
As discussed, there is a cross-national trend towards some form of diversion for most children coming to notice for minor or moderate offending. This has the result that although the numbers being dealt with through charges in a formal court setting or eventual custodial disposition are low, these cases are the most complex in terms of both the offence and the child. When the prin-ciples of diversion and “deprivation of liberty as a last resort” is employed thor-oughly, children who eventuate in court or custody may have exhausted the available options and community placements over many years. Communica-tion disorders, cognitive difficulties and mental health issues are prevalent amongst this population. Previous care history is often prevalent to the extent that the pipeline from care to custody seems ubiquitous and inevitable (Stan-ley, 2017). Over-represented populations also include ethnic or social minori-ties (Kempf-Leonard, 2007, Webster, 2018), children with immigrant status (Liddell et al., 2017) or refugee status and indigenous peoples (Cuneen, 2006). These smaller numbers also have the potential to transform practice in courts and custody from volume processing to evidence-based intervention. Thera-peutic jurisprudence and problem-solving courts such as specialist drug courts and judicial monitoring are promising initiatives for promoting children’s rein-tegration into society (Richards et al., 2017).
Daly and Rap, 2018). Strategies for effective participation can include special-ised court staff and child-friendly language (fra, 2015). It has been said that ‘authentic inclusion of children’s participation requires much more than a comfortable waiting room or a stuffed animal gift’ (Berrick et al., 2018). In bridging the theory to practice gap, a recent collection (Stalford, Hollingsworth and Gilmore, 2017) has extended the re-writing of judgments methodology pi-oneered by feminist legal scholars to re-write a selection of judgments from a children’s rights perspective.
2.3.4 Children Deprived of Liberty
Children deprived of liberty has been an issue of concern for a long time. The Global Study on Children Deprived of Liberty, commissioned by the United Nations, has aimed to provide a better understanding of the phenomenon, in the context of criminal justice and beyond. It has targeted at identifying prom-ising practices with regard to the prevention of arrest, detention or imprison-ment, the promotion of diversion and non-custodial measures, and the protec-tion of children deprived of liberty (UN Global Study, 2019; see also the full report published in November 2019). Key facts reported in this study include 160,000–250,000 children in remand centres and prisons worldwide, overuse of pre-trial detention, reliance on repressive and punitive policies leading to ex-cessive criminalisation, overrepresentation of certain groups of children, seri-ous concerns about children’s rights and well-being.
Indeed, there are grave concerns about the widespread use of deprivation of liberty in the criminal justice and other systems, and there are numerous re-port pointing at the absence of adequate prevention strategies, the lack of pro-tection of children’s rights and freedoms, including a lack of propro-tection against various forms of violence, and the negative impact of deprivation of liberty on children’s health, development, safety and reintegration (see e.g. Mendez, 2015). It needs no explanation that these concerns relate to the very core of children’s rights and interests.
further below). Moreover, there remain significant concerns about disparities and inequalities in the context of detention, as well as the use of severe sen-tences regarding children (see also below).
3 Gaps and Challenges for Children’s Rights
In this section we set out three challenges for the coming decades. Without disregarding that in many national systems there still are basic concerns with regard to children’s rights implementation (such as lack of adequate legisla-tion, high reliance on detention and lack of resources), what are some of the difficult and complex issues which scholars and advocates for children must address?
3.1 From Critique to Reform – A Children’s Rights Compliant Approach to Serious Offending
Our knowledge of children’s offending patterns is that most offending commit-ted by children falls into the minor to moderate range. Children’s offending is characterised mainly by property offences, anti-social behaviour, less serious assaults, status offences and traffic offences. A children’s rights compliant ap-proach to such cases is one which is diversionary, tolerant and timely, and which addresses the criminogenic and welfare issues which have contributed to the offending (Article 40.1, Convention). The human rights framework for children provides considerable guidance on prevention of offending, early intervention and diversionary processes, emphasising the importance of reintegration.
Scholarship in this area has rightly identified how punitive sentences con-travene children’s rights (O’Brien and Fitz-Gibbon, 2016). Capital punishment (Linde, 2011; James and Cecil, 2003–4). However, there is less discussion of what a children’s rights approach to such cases involve. Grappling with a prin-cipled approach to this issue involves consideration of what the public interest is in cases of offending by children and what weight should be placed on pub-lic safety (Kay, Tisdall and Docherty, 1998; Covell and Howe, 1996). Further, the rights and interests of victims of crime within the framework of children’s rights standards requires further examination. This is particularly relevant where the victim or alleged victim of the offence is also a child. The interests and rights of both children, including their best interests, must be considered in these cases (Lynch, 2018).
As well as the conceptual issues to be considered and weighed, the opera-tional and policy questions of what a children’s rights compliant approach looks like for serious cases must be addressed by scholars and advocates. If children’s rights scholars cannot say what a children’s rights compliant re-sponse looks like – how can we advocate at a policy and government level for change? The punitive status quo is likely to persist unless viable alternatives which acknowledge the public’s legitimate interest in accountability for seri-ous offending are proposed.
3.2 Addressing Over-Representation and Disparity of Outcomes for Minority Groups
As foreshadowed above, the most pressing and difficult challenge for children’s rights in the coming decades is the over-representation of certain groups of children in the criminal justice system. This is accompanied by disparity of outcomes of treatment.
Though the minority groups differ, the trends are depressingly similar in relation to ethnic and racial minorities:
– The Lammy Report (2017) in the United Kingdom reports that bame chil-dren make up 41 per cent of those in custody, and that young black men are nine times more likely to be in custody than white young men;
– New Zealand’s latest court figures indicate that in 2018, Māori made up 63 per cent of children and young people with charges finalised in court (Min-istry of Justice, 2018);
– In the United States, black children are highly over-represented at all stages of the justice system (Ghandnoosh, 2014).
Female children too face particular issues, with their offending seen to trans-gress societal views on norms of femininity as well as the criminal law (Lynch, 2014). The small numbers of female children in the criminal justice system also means that such children are often left worse off as specific and separate reintegrative and rehabilitative programmes are not available (Lynch, For-tune, Ward et al., 2018). There are also growing concerns with regard to chil-dren with (mental) disabilities and the way they are being treated within the justice system (Van den Brink et al., 2017). The causes of over-representation and disparity of outcomes are incredibly complex and cannot be disentangled from historical and contemporary societal factors such as colonialism, dis-crimination and poverty of opportunity (De Jonge, 1995; Douglas and Walsh, 2013).
Further, the increasing prevalence and lightly regulated development of the use of new technology for state surveillance, criminal justice processing and risk assessment is also concerning, and will require child-specific analysis of impact, particularly for minority children. For instance, the collection and re-tention of dna has been recognised as having particular impacts on children’s bodily integrity, privacy and reintegration, and being particularly stigmatising on racial and ethnic minorities (Campbell and Lynch, 2012). In New Zealand, a recent issues paper released by the Law Commission reports that 67 per cent of the profiles of children and youth held on the databank are of Māori de-scent, entrenching the bias and over-representation in the system (Law Com-mission, 2019). Emerging state surveillance tools such as automatic facial rec-ognition technology must be assessed for their impact on children. Digital worlds mean new sources of potential harm to children (Simpson) Children’s rights in a digital age of rapidly emerging technology is already a developing area of scholarship (Lievens et al., 2018; Livingstone and O’Neill, 2014).
3.3 Shifting Concepts of Childhood, Youth and Emerging Adulthood
There are a number of drivers for this trend, including the extension of the social concept of adolescence. While in former times indicators of adulthood such as marriage, childbearing and entry into the workforce was likely to occur at much earlier ages, it is now accepted that young adults are often not inde-pendent until their early to mid-twenties. Further, increased understanding of brain development in late adolescence has influenced policy. Also within the context of human rights, which builds on the notion that childhood ends at the age of 18, there seems to be a growing awareness around the importance of addressing the position of young adults. This has resulted in some specific guidance towards states on how to deal with children in transition from the juvenile into the criminal justice system (Liefaard, 2012). A positive aspect of increasing understanding of brain development is that young or emerging adults’ (a term used for those roughly between the ages of 18 and 25) vulnera-bilities and lesser capacities are being recognised through law, policy and prac-tice (Brewster, 2019). The vulnerability, lesser capacity and culpability of this group recognised through approaches like increasing the jurisdiction of the youth justice system or establishing a third system.
There are some challenges in these shifting concepts of childhood, youth and emerging adulthood. The development of these policies for lower-risk emerging adults coupled with the exclusion from protective measures of some children for serious offending may mean a categorisation of deserving/ undeserving or risky/not risky. This is compared to the “bright-line” test in chil-dren’s rights standards of protective measures being predicated on the child’s age rather than their level of risk or seriousness of the offence. It is also worth considering whether there are any challenges for the wider field of children’s rights. In particular, is there a cognitive dissonance in children’s rights scholar-ship, where in other fields such as education, medical decision-making, voice of the child, citizenship and gender identity, we consider and advocate that even young children are capable of exercising agency and autonomy and to appreciate the consequences of their proposed decisions (Hollingsworth, 2007). Is this a consistent approach? Or is there a need for consistency? (Yaffe, 2018).
4 Conclusion – Addressing the Challenges in the Next Decade
that scholarship and advocacy can address these challenges, and the fresh challenges to come.
First, the value of comparative research and engagement. There is much to be learned from other jurisdictions, particularly between common law and civil law jurisdictions. There is also much to be learnt by Western scholars from engaging (appropriately and respectfully) with concepts and models from in-digenous and other cultures (Libesman, 2007; Kaime, 2010), and with informal justice systems apparent in different parts of the world (see e.g. acpf, 2018). It is very useful to consider comparative aspects such as court orders available, but analysis needs to consider what the actual impact is on children, e.g. there may be different reasons for detention (retributive or child welfare or protec-tive), but the effect on the child is the same in terms of deprivation of liberty.
Secondly, the value of interdisciplinary scholarship and engagement must be emphasised. As we better recognise the complexities of our population of children in conflict with the law, upholding their rights and ensuring child-friendly justice will involve considering and applying knowledge from a range of scholarly disciplines, including medicine, public health, big data and eco-nomics. In relation to this, we need to be aware of the ethical issues related to and political implications of our work, as well as of the potential implications of scientific insights for the consistency of our approaches to children and ado-lescents (see the challenge related to shifting concepts of childhood and youth).
Thirdly, moving beyond critique into co-design is vital. It is relatively easy for scholars and advocates to critique law, policy and practice as being non-compliant with children’s rights standards, but more difficult to work in bal-ancing the various rights and interests inherent in law reform and policy for-mation. Scholars and advocates for children must ensure that they are involved and engaged in policy and law reform, which should also include critical and independent evaluation (see also General Comment No. 24, para. 114, where the Committee recommends that States parties ensure regular evaluations of their child justice systems, in particular of the effectiveness of the mea-sures taken, and in relation to matters such as discrimination, reintegration and patterns of offending, preferably carried out by independent academic institutions.).
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